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From Health Law Daily, April 24, 2017

Former WellCare exec denied by High Court; deliberate indifference sufficient for health care fraud conviction

By Kathryn S. Beard, J.D.

The former CEO of WellCare Health Plans, Inc., a Florida managed care plan sponsor, ran out of appeals on his federal health care fraud conviction on April 24, 2017, when the Supreme Court denied his petition for writ of certiorari. As a result, an 11th Circuit decision upholding a jury instruction allowing for conviction upon a finding that the former executive acted "with deliberate indifference as to the truth" will stand, despite his argument that the appeals court’s decision contradicts Supreme Court precedent.

The former CEO, along with other former WellCare senior executives, was convicted of health care fraud in 2013 based on WellCare’s submission of false reports of inflated expenditures for behavioral health services (see WellCare executives convicted of Medicaid fraud, June 11, 2013). Almost a year later, the former CEO was sentenced to serve 36 months in prison while WellCare paid over $200 million in civil fines and penalties, criminal restitution, and forfeiture (see WellCare investigation saga coming to a close, May 19, 2014).

He challenged his conviction based on the jury instruction, arguing that the federal health care fraud statute (18 U.S.C. §1347) requires a higher mens rea than deliberate indifference. The statutory language says "knowingly and willfully" but the district court allowed a jury instruction that did not require the jury to find knowledge of falsity before convicting the former executives. The former CEO argued that, based on the Supreme Court’s 2011 decision in Global-Tech Appliances, Inc. v. SEB (a civil patent infringement case), deliberate indifference is not a permissible standard for proving knowledge of falsity. The 11th Circuit upheld the instruction, finding that Global-Tech was not applicable. By denying the petition for writ of certiorari, the Court allowed the 11th Circuit’s decision—and, thus, the former CEO’s conviction—to stand.

Companies: WellCare Health Plans, Inc.

MainStory: TopStory SupremeCtNews CMSNews EnforcementNews FraudNews MedicaidNews ProgramIntegrityNews

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